What is the legal position of an unborn child?
– There is nothing in the law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all; but it is none the less a real and present ownership. A child in its mother’s womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim nasciturus pro jam nato habetur. In words of Coke: ‘The law in many cases hath consideration of him in respect of the apparent expectation of his birth.’ Thus, in the law of property, there is a fiction that a child en ventre sa mere is a person in being a life chosen to form part of the period in the rule against perpetuities. In this context, the rights of an unborn person, whether proprietary or personal, are all contingent on his birth as a living human being. The legal personality attributed to him by way of anticipation falls away ab initio if he never takes his place among the living.